Mark Levin Wrong on War Powers

“We’ve been involved in many military engagements; we’ve had very few declarations of war. And I’m including military engagements that were involved in by people you consider Founders of this nation. It’s because they’ve never, ever, required as a requisite—to defending this country, or even certain military actions—of getting Congress’ approval.”

Totally misleading. Everybody knows we’ve had few declarations of war. But Congress has also authorized countless lesser military actions — including the ones Levin obviously has in mind when he refers to “people you consider Founders of this nation.” Adams did not confront the French without congressional approval; same for Jefferson and the Barbary pirates. I’ve explained this.

“The language was originally ‘Congress shall make war.’ The framers rejected that. And instead replaced ‘make’ with ‘declare.'”

I’ve covered this, too. It doesn’t even come close to meaning what Levin wants it to.

The constitutional convention was “never going to give war-making power to Congress.”

Sure. Just ignore all the testimony to the contrary. Of course, Levin could be referring to the power to defend the country in an emergency, but even FDR went to Congress after the U.S. was attacked at Pearl Harbor!

“As for declaring war, if you actually understand the original intent of the framers, and the environment they were living in, the declaration of war was a declaration to the world that we are in a state of war with ‘X, Y, Z,’ country. More than anything else it was also a diplomatic statement of fact—Congress declaring war.”

This is the classic John Yoo argument, and also wrong. In the 18th century a “declaration of war” could just as easily mean the initiation of hostilities itself. This, too, is addressed in my overview.

“And as Hamilton pointed out, it’s the ultimate power—the power of the purse.”

Here Levin is trying to claim that the power of Congress over warmaking is confined to the power to de-fund presidential wars. But as long as Levin wants to quote Hamilton, let’s quote Hamilton, from Federalist #69:

“The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.”

Hamilton elsewhere says that the president’s war powers consist of “the direction of war when authorized or begun.”

Well, that’s pretty much the opposite of Levin’s view.

“You think my view is odd? Well that’s funny, because every single president of the United States has embraced this view—every damn one of em’, from Reagan to Obama.”

Yes, it is simply unthinkable that the two political parties could both defy the Constitution in the same way for 30 whole years. I mean, we have no precedent for such a thing elsewhere in government, where both parties have scrupulously observed constitutional limits for decades and decades.

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